The Sixth Amendment's Confrontation Clause gives the accused "[i]n all
criminal prosecutions, . . . the right . . . to be confronted with the
witnesses against him." In Crawford v. Washington, 541 U. S. 36, 59[*2707] , this
Court held that the Clause permits admission of "[t]estimonial statements
of witnesses absent from trial . . . only where the declarant is
unavailable, and only where the defendant has had a prior opportunity to
cross-examine." Later, in Melendez-Diaz v. Massachusetts, 557 U. S. ___,
the Court declined to create a "forensic evidence" exception to Crawford,
holding that a forensic laboratory report, created specifically to serve
as evidence in a criminal proceeding, ranked as "testimonial" for
Confrontation Clause purposes. Absent stipulation, the Court ruled, the
prosecution may not introduce such a report without offering a live
witness competent to testify to the truth of the report's statements.
557 U. S., at ___.

Petitioner Bullcoming's jury trial on charges of driving while
intoxicated (DWI) occurred after Crawford, but before Melendez-Diaz.
Principal evidence against him was a forensic laboratory report
certifying that his blood-alcohol concentration was well above the
threshold for aggravated DWI. Bullcoming's blood sample had been tested
at the New Mexico Department of Health, Scientific Laboratory Division
(SLD), by a forensic analyst named Caylor, who completed, signed, and
certified the report. However, the prosecution neither called Caylor to
testify nor asserted he was unavailable; the record showed only that
Caylor was placed on unpaid leave for an undisclosed reason. In lieu of
Caylor, the State called another analyst, Razatos, to validate the
report. Razatos was familiar with the testing device used to analyze
Bullcoming's blood and with the laboratory's testing procedures, but had
neither participated in nor observed the test on Bullcoming's blood
sample. Bullcoming's counsel objected, asserting
that introduction of Caylor's report without his testimony would violate
the Confrontation Clause, but the trial court overruled the objection,
admitted the SLD report as a business record, and permitted Razatos to
testify. Bullcoming was convicted, and, while his appeal was pending
before the New Mexico Supreme Court, this Court decided Melendez-Diaz.
The state high court acknowledged that the SLD report qualified as
testimonial evidence under Melendez-Diaz, but held that the report's
admission did not violate the Confrontation Clause because: (1)
certifying analyst Caylor was a mere scrivener who simply transcribed
machine-generated test results, and (2) SLD analyst Razatos, although he
did not participate in testing Bullcoming's blood, qualified as an expert
witness with respect to the testing machine and SLD procedures. The court
affirmed Bullcoming's conviction.

JUSTICE GINSBURG [***2] delivered the opinion of the Court with respect to all
but Part IV and footnote 6. The Confrontation Clause, the opinion
concludes, does not permit the prosecution to introduce a forensic
laboratory report containing a testimonial [**614] certification, made in order
to prove a fact at a criminal trial, through the in-court testimony of an
analyst who did not sign the certification or personally perform or
observe the performance of the test reported in the certification. The
accused's right is to be confronted with the analyst who made the
certification, unless that analyst is unavailable at trial, and the
accused had an opportunity, pretrial, to cross-examine that particular
scientist. Pp. 8-16.

(a) If an out-of-court statement is testimonial, it may not be
introduced against the accused at trial unless the witness who [*2708] made the
statement is unavailable and the accused has had a prior opportunity to
confront that witness. Pp. 8-14.

(i) Caylor's certification reported more than a machine-generated
number: It represented that he received Bullcoming's blood sample intact
with the seal unbroken; that he checked to make sure that the forensic
report number and the sample number corresponded; that he performed a
particular test on Bullcoming's sample, adhering to a precise protocol;
and that he left the report's remarks section blank, indicating that no
circumstance or condition affected the sample's integrity or the
analysis' validity. These representations, relating to past events and
human actions not revealed in raw, machine-produced data, are meet for
cross-examination. The potential ramifications of the state court's
reasoning, therefore, raise red flags. Most witnesses testify to their
observations of factual conditions or events. Where, for example, a
police officer's report recorded an objective fact
such as the read-out of a radar gun, the state court's reasoning would
permit another officer to introduce the information, so long as he or she
was equipped to testify about the technology the observing officer
deployed and the police department's standard operating procedures. As,
e.g., Davis v. Washington, 547 U. S. 813, 826, makes plain, however, such
testimony would violate the Confrontation Clause. The comparative
reliability of an analyst's testimonial report does not dispense with the
Clause. Crawford, 541 U. S., at 62. The analysts who write reports
introduced as evidence must be made available for confrontation even if
they have "the scientific acumen of Mme. Curie and the veracity of Mother
Teresa." Melendez-Diaz, 557 U. S., at ___, n. 6. Pp. 10-11.

(ii) Nor was Razatos an adequate substitute witness simply because he
qualified as an expert with respect to the testing machine and the SLD's
laboratory procedures. Surrogate testimony of the kind Razatos was
equipped to give could not convey what Caylor knew or observed about the
events he certified, nor expose any lapses or lies on Caylor's part.
Significantly, Razatos did not know why Caylor had been placed on unpaid
leave. With Caylor on the stand, Bullcoming's counsel could have asked
Caylor questions designed to reveal [***3] whether Caylor's incompetence,
evasiveness, or dishonesty accounted for his removal from work. And the
State did not assert that Razatos had any independent opinion concerning
Bullcoming's blood alcohol content. More fundamentally, the Confrontation
Clause does not tolerate dispensing with confrontation [**615] simply because the
court believes that questioning one witness about another's testimonial
statements provides a fair enough opportunity for cross-examination.
Although the purpose of Sixth Amendment rights is to ensure a fair
trial, it does not follow that such rights can be disregarded because, on
the whole, the trial is fair. United States v. Gonzalez-Lopez,
548 U. S. 140, 145. If a "particular guarantee" is violated, no
substitute procedure can cure the violation. Id., at 146. Pp. 11-14.

(b) Melendez-Diaz precluded the State's argument that introduction of
the SLD report did not implicate the Confrontation Clause because the
report is nontestimonial. Like the certificates in Melendez-Diaz, the SLD
report is undoubtedly an "affirmation made for the purpose of
establishing or proving some fact" in a criminal proceeding.
557 U. S., at ___. Created solely for an "evidentiary purpose," id., at
___, the report ranks as testimonial. In [*2709] all material respects, the SLD
report resembles the certificates in Melendez-Diaz. Here, as there, an
officer provided seized evidence to a state laboratory required by law to
assist in police investigations. Like the Melendez-Diaz analysts, Caylor
tested the evidence and prepared a certificate concerning the result of
his analysis. And like the Melendez-Diaz
certificates, Caylor's report here is "formalized" in a signed document,
Davis, 547 U. S., at 837, n. 2. Also noteworthy, the SLD report form
contains a legend referring to municipal and magistrate courts' rules
that provide for the admission of certified blood-alcohol analyses.
Thus, although the SLD report was not notarized, the formalities
attending the report were more than adequate to qualify Caylor's
assertions as testimonial. Pp. 14-16.

GINSBURG, J., delivered the opinion of the Court, except as to Part IV
and footnote 6. SCALIA, J., joined that opinion in full, SOTOMAYOR and
KAGAN, JJ., joined as to all but Part IV, and THOMAS, J., joined as to
all but Part IV and footnote 6. SOTOMAYOR, J., filed an opinion
concurring in part. KENNEDY, J., filed a dissenting opinion, in which
ROBERTS, C. J., and BREYER and ALITO, JJ., joined.

JUSTICE GINSBURG delivered the opinion of the Court, except as to
Part IV and footnote 6.[fn*]

[fn*] JUSTICE SOTOMAYOR and JUSTICE KAGAN join all but Part IV of this
opinion. JUSTICE THOMAS joins all but Part IV and footnote 6.

In Melendez-Diaz v. Massachusetts, 557 U. S. ___ (2009), this Court
held that a forensic laboratory report stating that a suspect substance
was cocaine ranked as testimonial for purposes of the Sixth Amendment's
Confrontation Clause. The report had been created specifically to serve
as evidence in a criminal proceeding. Absent stipulation, the Court
ruled, the prosecution may not introduce such a report without offering a
live witness competent to testify to the truth of the statements made in
the report.

In the case before us, petitioner Donald Bullcoming was arrested on
[**616] charges of driving while intoxicated (DWI). Principal evidence against
Bullcoming [***4] was a forensic laboratory report certifying that Bullcoming's
blood alcohol concentration was well above the threshold for aggravated
DWI. At trial, the prosecution did not call as a witness the analyst who
signed the certification. Instead, the State called another analyst who
was familiar with the
laboratory's testing procedures, but had neither participated in nor
observed the test on Bullcoming's blood sample. The New Mexico Supreme
Court determined that, [*2710] although the blood-alcohol analysis was
"testimonial," the Confrontation Clause did not require the certifying
analyst's in-court testimony. Instead, New Mexico's high court held, live
testimony of another analyst satisfied the constitutional requirements.

The question presented is whether the Confrontation Clause permits the
prosecution to introduce a forensic laboratory report containing a
testimonial certification — made for the purpose of proving a particular
fact — through the in-court testimony of a scientist who did not sign the
certification or perform or observe the test reported in the
certification. We hold that surrogate testimony of that order does not
meet the constitutional requirement. The accused's right is to be
confronted with the analyst who made the certification, unless that
analyst is unavailable at trial, and the accused had an opportunity,
pretrial, to cross-examine that particular scientist.

I

A

In August 2005, a vehicle driven by petitioner Donald Bullcoming
rear-ended a pick-up truck at an intersection in Farmington, New Mexico.
When the truckdriver exited his vehicle and approached Bullcoming to
exchange insurance information, he noticed that Bullcoming's eyes were
bloodshot. Smelling alcohol on Bullcoming's breath, the truckdriver told
his wife to call the police. Bullcoming left the scene before the police
arrived, but was soon apprehended by an officer who observed his
performance of field sobriety tests. Upon failing the tests, Bullcoming
was arrested for driving a vehicle while "under the influence of
intoxicating liquor" (DWI), in violation of N. M. Stat. Ann. § 66-8-102
(2004).

Because Bullcoming refused to take a breath test, the police obtained a
warrant authorizing a blood-alcohol analysis. Pursuant to the warrant, a
sample of Bullcoming's blood was drawn at a local hospital. To determine
Bull-coming's blood-alcohol concentration (BAC), the police sent the
sample to the New Mexico Department of Health, Scientific Laboratory
Division (SLD). In a standard SLD form titled "Report of Blood Alcohol
Analysis," participants in the testing were identified, and the forensic
analyst certified his finding. App. 62.

SLD's report contained in the top block "information . . . filled in by
[the] arresting officer." Ibid. (capitalization omitted). This
information included the "reason [the] suspect [was] stopped" (the
officer checked "Accident"), and the date ("8.14.05") and time ("18:25
PM") the blood sample was drawn. Ibid. (capitalization omitted). The
arresting officer also affirmed that he had arrested Bull-coming and
witnessed the blood draw. Ibid. The [***5] next two blocks contained
certifications by the nurse who drew Bullcoming's blood and the SLD
intake [**617] employee who received the blood sample sent to the laboratory.
Ibid.

Following these segments, the report presented the "certificate of
analyst," ibid. (capitalization omitted), completed and signed by Curtis
Caylor, the SLD forensic analyst assigned to test Bullcoming's blood
sample. Id., at 62, 64-65. Caylor recorded that the BAC in Bullcoming's
sample was 0.21 grams per hundred milliliters, an inordinately high
level. Id., at 62. Caylor also affirmed that "[t]he seal of th[e] sample
was received intact and broken in the laboratory," that "the statements
in [the analyst's block of the report] are correct," and that he had
"followed the procedures set out on the reverse of th[e] report." Ibid.
Those "procedures" instructed analysts, inter alia, to "retai[n] the
sample [*2711] container and the raw data from the analysis," and to "not[e] any
circumstance or condition which might affect the integrity of the sample
or otherwise
affect the validity of the analysis." Id., at 65. Finally, in a block
headed "certificate of reviewer," the SLD examiner who reviewed Caylor's
analysis certified that Caylor was qualified to conduct the BAC test, and
that the "established procedure" for handling and analyzing Bullcoming's
sample "ha[d] been followed." Id., at 62 (capitalization omitted).

SLD analysts use gas chromatograph machines to determine BAC levels.
Operation of the machines requires specialized knowledge and training.
Several steps are involved in the gas chromatograph process, and human
error can occur at each step.[fn1]

Caylor's report that Bullcoming's BAC was 0.21 supported a prosecution
for aggravated DWI, the threshold [**618] for which is a BAC of 0.16 grams per
hundred milliliters, § 66-8-102(D)(1). The State accordingly charged
Bullcoming with this more serious crime.

B

The case was tried to a jury in November 2005, after our decision in
Crawford v. Washington, 541 U. S. 36 (2004), but before Melendez-Diaz. On
the day of trial, the State announced that it would not be calling SLD
analyst Curtis Caylor as a witness because he had "very recently [been]
put [*2712] on unpaid leave" for a reason not revealed. 2010-NMSC-007, ¶ 8,
226 P. 3d 1, 6 (internal quotation marks omitted); App. 58. A startled
defense counsel objected. The prosecution, she complained, had never
disclosed, until trial commenced, that the witness "out there . . . [was]
not the analyst [of Bullcoming's sample]." Id., at 46. Counsel stated
that, "had [she] known that the analyst [who tested Bullcoming's blood]
was not available," her opening, indeed, her entire defense "may very
well have been dramatically different." Id., at 47. The State, however,
proposed to introduce Caylor's finding as a "business
record" during the testimony of Gerasimos Razatos, an SLD scientist who
had neither observed nor reviewed Caylor's analysis. Id., at 44.

Bullcoming's counsel opposed the State's proposal. Id., at 44-45.
Without Caylor's testimony, defense counsel maintained, introduction of
the analyst's finding would violate Bullcoming's Sixth Amendment right
"to be confronted with the witnesses against him." Ibid.[fn2] The trial
court overruled the objection, [***6]id., at 46-47, and admitted the SLD report
as a business record, id., at 44-46, 57.[fn3] The jury convicted
Bullcoming of aggravated DWI, and the New Mexico Court of Appeals upheld
the conviction, concluding that "the blood alcohol report in the present
case was non-testimonial and prepared routinely with guarantees of
trustworthiness." 2008-NMCA-097, § 17, 189 P. 3d 679, 685.

C

While Bullcoming's appeal was pending before the New Mexico Supreme
Court, this Court decided Melendez-Diaz. In that case, "[t]he
Massachusetts courts [had] admitted into evidence affidavits reporting
the results of forensic analysis which showed that material seized by the
police and connected to the defendant was cocaine." 557 U. S., at ___
(slip op., at 1). Those affidavits, the Court held, were "`testimonial,'
rendering the affiants `witnesses' subject to
the defendant's right of confrontation under the Sixth Amendment."
Ibid.

In light of Melendez-Diaz, the New Mexico Supreme Court acknowledged
that the blood-alcohol report introduced [**619] at Bullcoming's trial qualified
as testimonial evidence. Like the affidavits in Melendez-Diaz, the court
observed, the report was "functionally identical to live, in-court
testimony, doing precisely what a witness does on direct examination."
226 P. 3d, at 8 (quoting Melendez-Diaz, 557 U. S., at ___ (slip op., at
4)).[fn4] Nevertheless, for two reasons, the court held that admission of
the report did not violate the Confrontation Clause.
[*2713]

First, the court said certifying analyst Caylor "was a mere scrivener,"
who "simply transcribed the results generated by the gas chromatograph
machine." 226 P. 3d, at 8-9. Second, SLD analyst Razatos, although he did
not participate in testing Bullcoming's blood, "qualified as an expert
witness with respect to the gas chromatograph machine." Id., at 9.
"Razatos provided live, in-court testimony," the court stated, "and,
thus, was available for cross-examination regarding the operation of the
. . . machine, the results of [Bullcoming's] BAC test, and the SLD's
established laboratory procedures." Ibid. Razatos' testimony was
crucial, the court explained, because Bull-coming could not cross-examine
the machine or the written report. Id., at 10. But "[Bullcoming's] right
of confrontation was preserved," the court concluded, because Razatos was
a qualified analyst, able to serve as a surrogate for Caylor. Ibid.

We granted certiorari to address this question: Does the Confrontation
Clause permit the prosecution to introduce
a forensic laboratory report containing a testimonial certification, made
in order to prove a fact at a criminal trial, through the in-court
testimony of an analyst who did not sign the certification or personally
perform or observe the performance of the test reported in the
certification. 561 U. S. ___ (2010). Our answer is in line with
controlling precedent: As a rule, if an out-of-court statement is
testimonial in nature, it may not be introduced against the accused at
trial unless the witness who made the statement is unavailable and the
accused has had a prior opportunity to confront that witness. Because the
New Mexico Supreme Court permitted the testimonial statement of one
witness, i.e., Caylor, to enter into evidence through the in-court
[***7] testimony of a second person, i.e., Razatos, we reverse that court's
judgment.

II

The Sixth Amendment's Confrontation Clause confers upon the accused
"[i]n all criminal prosecutions, . . . the right . . . to be confronted
with the witnesses against him." In a pathmarking 2004 decision,
Crawford v. Washington, we overruled Ohio v. Roberts, 448 U. S. 56
(1980), which had interpreted the Confrontation Clause to allow admission
of absent witnesses' testimonial statements based on a judicial
determination of reliability. See Roberts, 448 U. S., at 66. Rejecting
Roberts' "amorphous notions of `reliability,'" Crawford, 541 U. S., at 61,
Crawford held that fidelity to the Confrontation Clause permitted
admission of "[t]estimonial statements [**620] of witnesses absent from trial .
. . only where the declarant is unavailable, and only where the defendant
has had a prior opportunity to cross-examine," id., at 59. See Michigan
v. Bryant, 562 U. S. ___, ___ (2011) (slip op., at 7) ("[F]or testimonial
evidence to be admissible, the Sixth Amendment `demands what the common
law required: unavailability [of the witness] and a prior opportunity for
cross-examination.'" (quoting
Crawford, 541 U. S., at 68)). Melendez-Diaz, relying on Crawford's
rationale, refused to create a "forensic evidence" exception to this
rule. 557 U. S., at ___-___ (slip op., at 11-15).[fn5] An analyst's
certification prepared [*2714] in connection with a criminal investigation or
prosecution, the Court held, is "testimonial," and therefore within the
compass of the Confrontation Clause. Id., at ___-___ (slip op., at
15-18).[fn6]

The State in the instant case never asserted that the analyst who
signed the certification, Curtis Caylor, was unavailable. The record
showed only that Caylor was placed on unpaid leave for an undisclosed
reason. See supra, at 5. Nor did Bullcoming have an opportunity to
cross-examine Caylor. Crawford and Melendez-Diaz, therefore, weigh
heavily in Bullcoming's favor. The New Mexico Supreme Court, however,
although recognizing that the SLD report was testimonial for purposes of
the Confrontation Clause, considered SLD analyst Razatos an adequate
substitute for Caylor. We explain first why Razatos' appearance did not
meet the Confrontation Clause requirement. We next address the State's
argument that the SLD report ranks as "nontestimonial," and
therefore "[was] not subject to the Confrontation Clause" in the
first place. Brief for Respondent 7 (capitalization omitted).

A

The New Mexico Supreme Court held surrogate testimony adequate to
satisfy the Confrontation Clause in this case because analyst Caylor
"simply transcribed the resul[t] generated by the gas chromatograph
machine," presenting no interpretation and exercising no independent
judgment. 226 P. 3d, at 8. Bullcoming's "true `accuser,'" the court
said, was the machine, while testing analyst Caylor's role was that of
"mere scrivener." Id., at 9. Caylor's certification, however, reported
more than a machine-generated number. See supra, at 3-4.

Caylor certified that he received Bullcoming's blood sample intact with
[**621] the seal unbroken, that he checked to make sure that the forensic report
number and the sample number "correspond[ed]," and that he performed on
Bull-coming's sample a particular test, adhering to a precise [***8] protocol.
App. 62-65. He further represented, by leaving the "[r]emarks" section of
the report blank, that no "circumstance or condition . . . affect[ed] the
integrity of the sample or . . . the validity of the analysis." Id., at
62, 65. These representations, relating to past events and human actions
not revealed in raw, machine-produced data, are meet for
cross-examination.

The potential ramifications of the New Mexico Supreme Court's
reasoning, furthermore, raise red flags. Most witnesses, after all,
testify to their observations of factual conditions or events, e.g., "the
light was green," "the hour was noon." Such witnesses may record, on the
spot, what they observed. Suppose a police report recorded an objective
fact — Bullcoming's counsel posited the address above the front door of a
house or the read-out of a radar gun. See Brief for Petitioner 35. Could
an officer other than the
one who saw the number on the house [*2715] or gun present the information in
court — so long as that officer was equipped to testify about any
technology the observing officer deployed and the police department's
standard operating procedures? As our precedent makes plain, the answer
is emphatically "No." See Davis v. Washington, 547 U. S. 813, 826 (2006)
(Confrontation Clause may not be "evaded by having a note-taking police[
officer] recite the . . . testimony of the declarant" (emphasis
deleted)); Melendez-Diaz, 557 U. S., at ___ (slip op., at 6) (KENNEDY,
J., dissenting) ("The Court made clear in Davis that it will not permit
the testimonial statement of one witness to enter into evidence through
the in-court testimony of a second.").

The New Mexico Supreme Court stated that the number registered by the
gas chromatograph machine called for no interpretation or exercise of
independent judgment on Caylor's part. 226 P. 3d, at 8-9. We have already
explained that Caylor certified to more than a machine-generated number.
See supra, at 3-4. In any event, the comparative reliability of an
analyst's testimonial report drawn from machine-produced data does not
overcome the Sixth Amendment bar. This Court settled in Crawford that the
"obviou[s] reliab[ility]" of a testimonial statement does not dispense
with the Confrontation Clause. 541 U. S., at 62; see id., at 61 (Clause
"commands, not that evidence be reliable, but that reliability be
assessed in a particular manner: by testing [the evidence] in the
crucible of cross-examination"). Accordingly, the analysts who write
reports that the prosecution introduces must be made available for
confrontation even if they possess "the scientific acumen of Mme. Curie
and the veracity of Mother Teresa." Melendez-Diaz, 557 U. S., at ___, n.
6 (slip op., at 14, n. 6).

B

Recognizing that admission of the blood-alcohol analysis
depended on "live, in-court testimony [by] a qualified analyst,"
226 P. 3d, at 10, the New Mexico Supreme Court believed that Razatos
could substitute for Caylor because Razatos "qualified as an expert
witness with respect to the gas [**622] chromatograph machine and the SLD's
laboratory procedures," id., at 9. But surrogate testimony of the kind
Razatos was equipped to give could not convey what Caylor knew or
observed about the events his certification concerned, i.e., the
particular test and testing [***9] process he employed.[fn7] Nor could such
surrogate testimony expose any lapses or lies on the certifying analyst's
part.[fn8] Significant here, Razatos had no knowledge of the reason why
Caylor had been placed on unpaid leave. With Caylor on the stand,
Bullcoming's counsel could have asked questions designed to reveal
whether incompetence, evasiveness, or dishonesty accounted for Caylor's
removal from his work station. Notable in this regard, the State never
asserted that Caylor was "unavailable"; [*2716] the prosecution conveyed only
that Caylor was on uncompensated leave. Nor did the State assert that
Razatos had any "independent opinion" concerning Bullcoming's BAC. See
Brief for Respondent 58, n. 15. In this light, Caylor's live testimony
could hardly be typed "a hollow formality," post, at 4.

More fundamentally, as this Court stressed in Crawford, "[t]he text of
the Sixth Amendment does not suggest
any open-ended exceptions from the confrontation requirement to be
developed by the courts." 541 U. S., at 54. Nor is it "the role of courts
to extrapolate from the words of the [Confrontation Clause] to the values
behind it, and then to enforce its guarantees only to the extent they
serve (in the courts' views) those underlying values." Giles v.
California, 554 U. S. 353, 375 (2008). Accordingly, the Clause does not
tolerate dispensing with confrontation simply because the court believes
that questioning one witness about another's testimonial statements
provides a fair enough opportunity for cross-examination.

A recent decision involving another Sixth Amendment right — the right
to counsel — is instructive. In United States v. Gonzalez-Lopez,
548 U. S. 140 (2006), the Government argued that illegitimately denying a
defendant his counsel of choice did not violate the Sixth Amendment where
"substitute counsel's performance" did not demonstrably prejudice the
defendant. Id., at 144-145. This Court rejected the Government's
argument. "[T]rue enough," the Court explained, "the purpose of the
rights set forth in [the Sixth] Amendment is to ensure a fair trial; but
it does not follow that the rights can be disregarded so long as the
trial is, on the whole, fair." Id., at 145. If a "particular guarantee"
of the Sixth Amendment is violated, no substitute procedure can cure the
violation, and "[n]o additional showing of prejudice is required to make
the violation `complete.'" Id., at 146. [**623] If representation by substitute
counsel does not satisfy the Sixth Amendment, neither does the
opportunity to confront a substitute witness.

In short, when the State elected to introduce Caylor's certification,
Caylor became a witness Bullcoming had the right to confront. Our
precedent cannot sensibly be read any other way. See Melendez-Diaz,
557 U. S., at ___ (slip op., at 6) (KENNEDY, J., dissenting) (Court's
holding means "the . . . analyst who must testify is the person who
signed
the certificate").

III

We turn, finally, to the State's contention that the SLD's
blood-alcohol analysis reports are nontestimonial in character, therefore
no Confrontation Clause question even arises in this case. Melendez-Diaz
left no room for that argument, the New Mexico Supreme Court concluded,
see 226 P. 3d, at 7-8; supra, at 7, a conclusion we find inescapable.

In Melendez-Diaz, a state forensic laboratory, [***10] on police request,
analyzed seized evidence (plastic bags) and reported the laboratory's
analysis to the police (the substance found in the bags contained
cocaine). 557 U. S., at ___ (slip op., at 2). The "certificates of
analysis" prepared by the analysts who tested the evidence in
Melendez-Diaz, this Court held, were "incontrovertibly . . .
affirmation[s] made for the purpose of establishing or proving some fact"
in a criminal proceeding. Id., at ___ (slip op., at 4) (internal
quotation marks omitted). The same purpose was served by the certificate
in question here.
[*2717]

The State maintains that the affirmations made by analyst Caylor were
not "adversarial" or "inquisitorial," Brief for Respondent 27-33;
instead, they were simply observations of an "independent scientis[t]"
made "according to a non-adversarial public duty," id., at 32-33. That
argument fares no better here than it did in Melendez-Diaz. A document
created solely for an "evidentiary purpose," Melendez-Diaz clarified,
made in aid of a police investigation, ranks as testimonial.
557 U. S., at ___ (slip op., at 5) (forensic reports available for use at
trial are "testimonial statements" and certifying analyst is a "`witness'
for purposes of the Sixth Amendment").

Distinguishing Bullcoming's case from Melendez-Diaz, where the
analysts' findings were contained in certificates "sworn to before a
notary public," id., at ___ (slip op., at 2),
the State emphasizes that the SLD report of Bullcoming's BAC was
"unsworn." Brief for Respondent 13; post, at 2 ("only sworn statement"
here was that of Razatos, "who was present and [did] testif[y]"). As the
New Mexico Supreme Court recognized, "`the absence of [an] oath [i]s not
dispositive' in determining if a statement is testimonial." 226 P. 3d, at 8
(quoting Crawford, 541 U. S., at 52). Indeed, in Crawford, this Court
rejected as untenable any construction of the Confrontation Clause that
would render inadmissible only sworn ex parte affidavits, while leaving
admission of formal, but unsworn statements "perfectly OK." Id., at
52-53, n. 3. Reading the Clause in this "implausible" manner, ibid., the
Court noted, would make the right to confrontation [**624] easily erasable. See
Davis, 547 U. S., at 830-831, n. 5; id., at 838 (THOMAS, J., concurring
in judgment in part and dissenting in part).

In all material respects, the laboratory report in this case resembles
those in Melendez-Diaz. Here, as in Melendez-Diaz, a law-enforcement
officer provided seized evidence to a state laboratory required by law to
assist in police investigations, N. M. Stat. Ann. § 29-3-4 (2004). Like
the analysts in Melendez-Diaz, analyst Caylor tested the evidence and
prepared a certificate concerning the result of his analysis. App. 62.
Like the Melendez-Diaz certificates, Caylor's certificate is "formalized"
in a signed document, Davis, 547 U. S., at 837, n. 2 (opinion of THOMAS,
J.), headed a "report," App. 62. Noteworthy as well, the SLD report form
contains a legend referring to municipal and magistrate courts' rules
that provide for the admission of certified blood-alcohol analyses.

In sum, the formalities attending the "report of blood alcohol
analysis" are more than adequate to qualify Caylor's assertions as
testimonial. The absence of notarization does not remove his
certification from Confrontation [***11] Clause governance. The New Mexico
Supreme Court, guided by Melendez-Diaz, correctly recognized that
Caylor's
report "fell within the core class of testimonial statements"
226 P. 3d, at 7, described in this Court's leading Confrontation Clause
decisions: Melendez-Diaz, 557 U. S., at ___ (slip op., at 4); Davis,
547 U. S., at 830; Crawford, 541 U. S., at 51-52.

IV

The State and its amici urge that unbending application of the
Confrontation Clause to forensic evidence would impose an undue burden on
the prosecution. This argument, also advanced in the dissent, post, at
10-11, largely repeats a refrain rehearsed and rejected in Melendez-Diaz.
See 557 U. S., at ___-___[*2718] (slip op., at 19-23). The constitutional
requirement, we reiterate, "may not [be] disregard[ed] . . . at our
convenience," id., at ___ (slip op., at 19), and the predictions of dire
consequences, we again observe, are dubious, see id., at ___ (slip op.,
at 19-20).

New Mexico law, it bears emphasis, requires the laboratory to preserve
samples, which can be retested by other analysts, see N. M. Admin. Code
§ 7.33.2.15(A)(4)-(6) (2010), available at
http://www.nmcpr.state.nm.us/nmac/_title07/T07C033.htm, and neither party
questions SLD's compliance with that requirement. Retesting "is almost
always an option . . . in [DWI] cases," Brief for Public Defender Service
for District of Columbia et al. as Amici Curiae 25 (hereinafter PDS
Brief), and the State had that option here: New Mexico could have avoided
any Confrontation Clause problem by asking Razatos to retest the sample,
and then testify to the results of his retest rather than to the results
of a test he did not conduct or observe.

Notably, New Mexico advocates retesting as an effective means to
preserve a defendant's confrontation right "when the [out-of-court]
statement is raw data or a mere transcription of raw data onto a public
record." [**625] Brief for Respondent 53-54. But the State would require the
defendant to initiate retesting. Id., at 55; post, at 4 (defense
"remains free to. . . . call and examine the technician who performed a
test"), post, at 8 ("free retesting" is available to defendants). The
prosecution, however, bears the burden of proof. Melendez-Diaz,
557 U. S., at ___ (slip op., at 19) ("[T]he Confrontation Clause imposes
a burden on the prosecution to present its witnesses, not on the
defendant to bring those adverse witnesses into court."). Hence the
obligation to propel retesting when the original analyst is unavailable
is the State's, not the defendant's. See Taylor v. Illinois, 484 U. S. 400,
410, n. 14 (1988) (Confrontation Clause's requirements apply "in every
case, whether or not the defendant seeks to rebut the case against him or
to present a case of his own").

Furthermore, notice-and-demand procedures, long in effect in many
jurisdictions, can reduce burdens on forensic laboratories. Statutes
governing these procedures typically "render . . . otherwise hearsay
forensic reports admissible[,] while specifically preserving a
defendant's right to demand that the prosecution call the author/ analyst
of [the] report." PDS Brief 9; see Melendez-Diaz, 557 U. S., at ___ (slip
op., at 20) (observing that notice-and-demand statutes "permit the
defendant to assert (or forfeit by silence) his Confrontation Clause
right after receiving notice of the prosecution's intent to use [***12] a
forensic analyst's report").

Even before this Court's decision in Crawford, moreover, it was common
prosecutorial practice to call the forensic analyst to testify.
Prosecutors did so "to bolster the persuasive power of [the State's]
case[,] . . . [even] when the defense would have preferred that the
analyst did not testify." PDS Brief 8.

We note also the "small fraction of . . . cases" that "actually proceed
to trial." Melendez-Diaz, 557 U. S., at ___ (slip op., at 20) (citing
estimate that "nearly 95% of convictions in state and federal courts are
obtained via guilty plea"). And, "when cases in which forensic analysis
has
been conducted [do] go to trial," defendants "regularly . . . [stipulate]
to the admission of [the] analysis." PDS Brief 20. "[A]s a result,
analysts testify in only a very small percentage of cases," id., at 21,
for "[i]t is unlikely that defense counsel will insist on live testimony
whose effect will be merely to highlight rather than cast [*2719] doubt upon the
forensic analysis." Melendez-Diaz, 557 U. S., at ___
(slip op., at 22).[fn9]

Tellingly, in jurisdictions in which "[**626] it is the [acknowledged] job of
. . . analysts to testify in court . . . about their test results," the
sky has not fallen. PDS Brief 23. State and municipal laboratories "make
operational and staffing decisions" to facilitate analysts' appearance at
trial. Ibid. Prosecutors schedule trial dates to accommodate analysts'
availability, and trial courts liberally grant continuances when
unexpected conflicts arise. Id., at 24-25. In rare cases in which the
analyst is no longer employed by the laboratory at the time of trial,
"the prosecution makes the effort to bring that analyst . . . to court."
Id., at 25. And, as is the practice in New Mexico, see supra, at 16,
laboratories ordinarily retain additional samples, enabling them to run
tests again when necessary.[fn10]

* * *

For the reasons stated, the judgment of the New Mexico Supreme
Court is reversed, and the case is remanded for further proceedings
not inconsistent with this opinion.[fn11]

It is so ordered.

[fn1] Gas chromatography is a widely used scientific method of
quantitatively analyzing the constituents of a mixture. See generally H.
McNair & J. Miller, Basic Gas Chromatography (2d ed. 2009) (hereinafter
McNair). Under SLD's standard testing protocol, the analyst extracts two
blood samples and inserts them into vials containing an "internal
standard" — a chemical additive. App. 53. See McNair 141-142. The analyst
then "cap[s] the [two] sample[s]," "crimp[s] them with an aluminum top,"
and places the vials into the gas chromatograph machine. App. 53-54.
Within a few hours, this device produces a printed graph — a chromatogram
— along with calculations representing a software-generated
interpretation of the data. See Brief for State of New Mexico Dept. of
Health, SLD as Amicus Curiae 16-17.

Although the State presented testimony that obtaining an accurate BAC
measurement merely entails "look[ing] at the [gas chromatograph] machine
and record[ing] the results," App. 54, authoritative sources reveal that
the matter is not so simple or certain. "In order to perform quantitative
analyses satisfactorily and . . . support the results under rigorous
examination in court, the analyst must be aware of, and adhere to, good
analytical practices and understand what is being done and why."
Stafford, Chromatography, in Principles of Forensic Toxicology 92, 114
(B. Levine 2d ed. 2006). See also McNair 137 ("Errors that occur in any
step can invalidate the best chromatographic analysis, so attention must
be paid to all steps."); D. Bartell, M. McMurray, & A. ImObersteg,
Attacking and Defending Drunk Driving Tests § 16:80 (2d revision 2010)
(stating that 93% of errors in laboratory tests for BAC levels are human
errors that occur either before or after machines analyze samples). Even
after the machine has produced its printed result, a review of the
chromatogram may indicate that the test was not valid. See McNair
207-214.

Nor is the risk of human error so remote as to be negligible. Amici
inform us, for example, that in neighboring Colorado, a single forensic
laboratory produced at least 206 flawed blood-alcohol readings over a
three-year span, prompting the dismissal of several criminal
prosecutions. See Brief for National Association of Criminal Defense
Lawyers et al. as Amici Curiae 32-33. An analyst had used improper
amounts of the internal standard, causing the chromatograph machine
systematically to inflate BAC measurements. The analyst's error, a
supervisor said, was "fairly complex." Ensslin, Final Tally on Flawed
DUI: 206 Errors, 9 Tossed or Reduced, Colorado Springs Gazette, Apr. 19,
2010, p. 1 (internal quotation marks omitted), available at
http://www.gazette.com/articles/report-97354-police-discuss.html. (All
Internet materials as visited June 21, 2011, and included in Clerk of
Court's case file).

[fn2] The State called as witnesses the arresting officer and the nurse
who drew Bullcoming's blood. Bullcoming did not object to the State's
failure to call the SLD intake employee or the reviewing analyst. "It is
up to the prosecution," the Court observed in Melendez-Diaz v.
Massachusetts, 557 U. S. ___, ___, n. 1 (2009) (slip op., at 5, n. 1),
"to decide what steps in the chain of custody are so crucial as to
require evidence; but what testimony is introduced must (if the defendant
objects) be introduced live."

[fn3] The trial judge noted that, when he started out in law practice,
"there were no breath tests or blood tests. They just brought in the
cop, and the cop said, `Yeah, he was drunk.'" App. 47.

[fn5] The dissent makes plain that its objection is less to the
application of the Court's decisions in Crawford and Melendez-Diaz to this
case than to those pathmarking decisions themselves. See post, at 5
(criticizing the "Crawford line of cases" for rejecting "reliable
evidence"); post, at 8-9, 11 (deploring "Crawford's rejection of the
[reliability-centered] regime of Ohio v. Roberts").

[fn6] To rank as "testimonial," a statement must have a "primary purpose"
of "establish[ing] or prov[ing] past events potentially relevant to later
criminal prosecution." Davis v. Washington, 547 U. S. 813, 822 (2006).
See also Bryant, 562 U. S., at ___ (slip op., at 11). Elaborating on the
purpose for which a "testimonial report" is created, we observed in
Melendez-Diaz that business and public records "are generally admissible
absent confrontation . . . because — having been created for the
administration of an entity's affairs and not for the purpose of
establishing or proving some fact at trial — they are not testimonial."
557 U. S., at ___ (slip op., at 18).

[fn7] We do not question that analyst Caylor, in common with other
analysts employed by SLD, likely would not recall a particular test,
given the number of tests each analyst conducts and the standard
procedure followed in testing. Even so, Caylor's testimony under oath
would have enabled Bullcoming's counsel to raise before a jury questions
concerning Caylor's proficiency, the care he took in performing his
work, and his veracity. In particular, Bullcoming's counsel likely would
have inquired on cross-examination why Caylor had been placed on unpaid
leave.

[fn8] At Bullcoming's trial, Razatos acknowledged that "you don't know
unless you actually observe the analysis that someone else conducts,
whether they followed th[e] protocol in every instance." App. 59.

[fn9] The dissent argues otherwise, reporting a 71% increase, from 2008
to 2010, in the number of subpoenas for New Mexico analysts' testimony in
impaired-driving cases. Post, at 11. The dissent is silent, however, on
the number of instances in which subpoenaed analysts in fact testify,
i.e., the figure that would reveal the actual burden of courtroom
testimony. Moreover, New Mexico's Department of Health, Scientific
Laboratory Division, has attributed the "chaotic" conditions noted by the
dissent, ibid., to several favors, among them, staff attrition, a state
hiring freeze, a 15% increase in the number of blood samples received for
testing, and "wildly" divergent responses by New Mexico District
Attorneys to Melendez-Diaz. Brief for State of New Mexico Dept. of
Health, SLD as Amicus Curiae 2-5. Some New Mexico District Attorneys'
offices, we are informed, "subpoen[a] every analyst with any connection
to a blood sample," id., at 5, an exorbitant practice that undoubtedly
inflates the number of subpoenas issued.

[fn10] The dissent refers, selectively, to experience in Los Angeles,
post, at 10, but overlooks experience documented in Michigan. In that
State, post-Melendez-Diaz, the increase in in-court analyst testimony has
been slight. Compare PDS Brief 21 (in 2006, analysts provided testimony
for only 0.7% of all tests), with Michigan State Police, Forensic Science
Division, available at
http://www.michigan.gov/msp/0,1607,7-123-1593_3800-15901 —,00.html (in
2010, analysts provided testimony for approximately 1% of all tests).

[fn11] As in Melendez-Diaz, 557 U. S., at ___, and n. 14 (slip op., at
23, and n. 14), we express no view on whether the Confrontation Clause
error in this case was harmless. The New Mexico Supreme Court did not
reach that question, see Brief for Respondent 59-60, and nothing in this
opinion impedes a harmless-error inquiry on remand.

JUSTICE SOTOMAYOR, concurring in part.

I agree with the Court that the trial court erred by admitting the
blood alcohol concentration (BAC) report. I write separately first to
highlight why I view the report at issue to be testimonial — specifically
because its "primary purpose" is evidentiary — and second to emphasize
the limited reach of the Court's opinion.

I

A

Under our precedents, the New Mexico Supreme Court was correct to hold
that the certified BAC report in this case is testimonial. 2010-NMSC-007,
¶ 18, 226 P. 3d 1, 8[*2720] . To determine if a statement is testimonial, we must
decide whether it has "a primary purpose of creating an out-of-court
substitute for trial testimony." Michigan v. Bryant, 562 U. S. ___,
___(2011) (slip op., at 11). When the "primary purpose" of a statement is
"not to create a record for trial," ibid., "the admissibility of [the]
statement is the concern of state and federal rules of evidence, not the
Confrontation Clause," id., at ___(slip op., at 12).

This is not the first time the Court has faced the question of whether
a scientific report is testimonial. As the Court explains, ante, at
14-15, in Melendez-Diaz v. Massachusetts, 557 U. S. ___(2009), we held
that "certificates
of analysis," completed by employees of the State Laboratory Institute [***13][**627] of
the Massachusetts Department of Public Health, id., at ___ (slip op., at
2), were testimonial because they were "incontrovertibly . . . `"solemn
declaration[s] or affirmation[s] made for the purpose of establishing or
proving some fact,"'" id., at ___ (slip op., at 4) (quoting Crawford v.
Washington, 541 U. S. 36, 51 (2004), in turn quoting 2 N. Webster, An
American Dictionary of the English Language (1828)).

As we explained earlier this Term in Michigan v. Bryant, 562 U. S. ___
(2010), "[i]n making the primary purpose determination, standard rules of
hearsay . . . will be relevant." Id., at ___ (slip op., at 11-12).[fn1]
As applied to a scientific report, Melendez-Diaz explained that pursuant
to Federal Rule of Evidence 803, "[d]ocuments kept in the regular course
of business may ordinarily be admitted at trial despite their hearsay
status," except "if the regularly conducted business activity is the
production of evidence for use at trial." 557 U. S., at ___ (slip op., at
15-16) (citing Fed. Rule Evid. 803(6)). In that circumstance, the hearsay
rules bar admission of even business records. Relatedly, in the
Confrontation Clause context, business and public records "are generally
admissible absent confrontation . . . because — having been created for
the administration of an entity's affairs and not for the purpose of
establishing or proving some fact at trial — they are not testimonial."
Melendez-Diaz, 557 U. S., at ___ (slip op., at 18). We concluded,
therefore, that because the purpose of the certificates of analysis was
use at trial, they were not
properly admissible as business or public records under the hearsay
rules, id., at ___ (slip op., at 15-16), nor were they admissible under
the Confrontation Clause, id., at ___ (slip op., at 18). The hearsay
rule's recognition of the certificates' evidentiary purpose thus
confirmed our decision that the certificates were testimonial under the
primary purpose analysis required by the Confrontation Clause. See id., at
___ (slip op., at 5) (explaining that under Massachusetts law not just
the purpose but the "sole purpose of the affidavits was to provide"
evidence).

Similarly, in this case, for the reasons the Court sets forth the BAC
report and Caylor's certification on it clearly have a "primary purpose
of creating an out-of-court substitute for trial testimony." Bryant,
562 U. S., at ___[*2721] (slip op., at 11). The Court also explains why the BAC
report is not materially distinguishable from the certificates we held
testimonial in Melendez-Diaz. See 557 U. S., at ___ (slip op., at 2,
4-5).[fn2]

The formality inherent in the certification [**628] further suggests its
evidentiary purpose. Although "[f]ormality is not the sole touchstone of
our primary purpose inquiry," a statement's formality or informality can
shed light on whether a particular statement has a primary purpose of use
at trial. Bryant, 562 U. S., at ___ (slip op., at 19).[fn3]
I agree with the Court's assessment that the certificate at issue here is
a formal statement, despite the absence of notarization. Ante, at 14-15;
Crawford, 541 U. S., at 52 ("[T]he absence of [an] oath [is] not
dispositive"). The formality derives from the fact that the analyst is
asked to sign his name and "certify" to both the result and the
statements on the form. A "certification" requires one "[t]o attest" that
the accompanying statements [***14] are true. Black's Law Dictionary 258 (9th
ed. 2009) (definition of "certify"); see also id., at 147 (defining
"attest" as "[t]o bear witness; testify," or "[t]o affirm to be true or
genuine; to authenticate by signing as a witness").

In sum, I am compelled to conclude that the report has a "primary
purpose of creating an out-of-court substitute for trial testimony,"
Bryant, 562 U. S., at ___ (slip op., at 11), which renders it
testimonial.

B

After holding that the report was testimonial, the New Mexico Supreme
Court nevertheless held that its admission was permissible under the
Confrontation Clause for two reasons: because Caylor was a "mere
scrivener," and because Razatos could be cross-examined on the workings
of the gas chromatograph and laboratory procedures. 226 P. 3d, at 8-10.
The Court convincingly explains why those
rationales are incorrect. Ante, at 9-13. Therefore, the New Mexico court
contravened our precedents in holding that the report was admissible via
Razatos' testimony.

II

Although this case is materially indistinguishable from the facts we
considered in Melendez-Diaz, I highlight some of the [*2722] factual
circumstances that this case does not present.

First, this is not a case in which the State suggested an alternate
purpose, much less an alternate primary purpose, for the BAC report. For
example, the State has not claimed that [**629] the report was necessary to
provide Bullcoming with medical treatment. See Bryant, 562 U. S., at ___,
n. 9 (slip op., at 15, n. 9) (listing "Statements for Purposes of Medical
Diagnosis or Treatment" under Federal Rule of Evidence 803(4) as an
example of statements that are "by their nature, made for a purpose other
than use in a prosecution"); Melendez-Diaz, 557 U. S., at ___, n. 2 (slip
op., at 6, n. 2) ("[M]edical reports created for treatment purposes . . .
would not be testimonial under our decision today"); Giles v. California,
554 U. S. 353, 376 (2008) ("[S]tatements to physicians in the course of
receiving treatment would be excluded, if at all, only by hearsay
rules").

Second, this is not a case in which the person testifying is a
supervisor, reviewer, or someone else with a personal, albeit limited,
connection to the scientific test at issue. Razatos conceded on
cross-examination that he played no role in producing the BAC report and
did not observe any portion of Curtis Caylor's conduct of the testing.
App. 58. The court below also recognized Razatos' total lack of connection
to the test at issue. 226 P. 3d, at 6. It would be a different case if,
for example, a supervisor who observed an analyst conducting a test
testified about the results or a report about such results. We need not
address
what degree of involvement is sufficient because here Razatos had no
involvement whatsoever in the relevant test and report.

Third, this is not a case in which an expert witness was asked for his
independent opinion about underlying testimonial reports that were not
themselves admitted into evidence. See Fed. Rule Evid. 703 (explaining
that facts or data of a type upon which experts in the field would
reasonably rely in forming an opinion need not be admissible in order for
the expert's opinion based on the facts and data to be admitted). As the
Court notes, ante, at 12, the State does [***15] not assert that Razatos offered
an independent, expert opinion about Bullcoming's blood alcohol
concentration. Rather, the State explains, "[a]side from reading a report
that was introduced as an exhibit, Mr. Razatos offered no opinion about
Petitioner's blood alcohol content. . . ." Brief for Respondent 58, n. 15
(citation omitted). Here the State offered the BAC report, including
Caylor's testimonial statements, into evidence. We would face a different
question if asked to determine the constitutionality of allowing an
expert witness to discuss others' testimonial statements if the
testimonial statements were not themselves admitted as evidence.

Finally, this is not a case in which the State introduced only
machine-generated results, such as a printout from a gas chromatograph.
The State here introduced Caylor's statements, which included his
transcription of a blood alcohol concentration, apparently copied from a
gas chromatograph printout, along with other statements about the
procedures used in handling the blood sample. See ante, at 10; App. 62 ("I
certify that I followed the procedures set out on the reverse of this
report, and the statements in this block are correct"). Thus, we do not
decide whether, as the New Mexico Supreme Court suggests, 226 P. 3d, at 10,
a State could introduce (assuming an adequate chain of custody
foundation) raw data generated by
a machine in conjunction with the testimony [**630] of an expert witness.
See Reply Brief for Petitioner 16, n. 5.
[*2723]

This case does not present, and thus the Court's opinion does not
address, any of these factual scenarios.

* * *

As in Melendez-Diaz, the primary purpose of the BAC report is clearly
to serve as evidence. It is therefore testimonial, and the trial court
erred in allowing the State to introduce it into evidence via Razatos'
testimony. I respectfully concur.

[fn1] Contrary to the dissent's characterization, Bryant deemed
reliability, as reflected in the hearsay rules, to be "relevant,"
562 U. S., at ___ (slip op., at 11-12), not "essential," post, at 5
(opinion of KENNEDY, J.). The rules of evidence, not the Confrontation
Clause, are designed primarily to police reliability; the purpose of the
Confrontation Clause is to determine whether statements are testimonial
and therefore re quire confrontation.

[fn2] This is not to say, however, that every person noted on the BAC
report must testify. As we explained in Melendez-Diaz, it is not the case
"that anyone whose testimony may be relevant in establishing the chain of
custody, authenticity of the sample, or accuracy of the testing device,
must appear in person as part of the prosecution's case. . . . It is up
to the prosecution to decide what steps in the chain of custody are so
crucial as to require evidence. . . ." 557 U. S., at ___, n. 1 (slip
op., at 5, n. 1).

[fn3] By looking to the formality of a statement, we do not "trea[t] the
reliability of evidence as a reason to exclude it." Post, at 5 (KENNEDY,
J., dissenting). Although in some instances formality could signal
reliability, the dissent's argument fails to appreciate that, under our
Confrontation Clause precedents, formality is primarily an indicator of
testimonial purpose. Formality is not the sole indicator of the
testimonial nature of a statement because it is too easily evaded. See
Davis v. Washington, 547 U. S. 813, 838 (2006) (THOMAS, J., concurring in
judgment in part and dissenting in part). Nonetheless formality has long
been a hallmark of testimonial statements because formality suggests that
the statement is intended for use at trial. As we explained in Bryant,
informality, on the other hand, "does not necessarily indicate . . . lack
of testimonial intent." 562 U. S., at ___ (slip op., at 19). The dissent
itself recognizes the relevance of formality to the testimonial inquiry
when it notes the formality of the problematic unconfronted statements in
Sir Walter Raleigh's trial. Post, at 7-8 (opinion of KENNEDY, J.).

The Sixth Amendment Confrontation Clause binds the States and the
National Government. Pointer v. Texas, 380 U. S. 400, 403 (1965). Two
Terms ago, in a case arising from a state criminal prosecution, the Court
interpreted the Clause to mandate exclusion of a laboratory report sought
to be introduced based on the authority of that report's own sworn
statement that a test had been performed yielding the results as shown.
Melendez-Diaz v. Massachusetts, 557 U. S. ___ (2009). The Court's opinion
in that case held the report inadmissible because no one was present at
trial to testify to its contents.

Whether or not one agree with the reasoning and the result in
Melendez-Diaz g the Court today takes the new and serious misstep of
extending that holding to instances like this one. Here a knowledgeable
representative of the laboratory was present to testify and to explain
the lab's processes and the details of the report; but because he was not
the analyst who filled out part of the form and transcribed onto it the
test result from a machine printout, the Court finds a confrontation
violation. Some of the principal objections to the Court's underlying
theory have been set out earlier and need not be repeated here. See id.,
at ___ (KENNEDY, J., dissenting). Additional reasons, applicable
to the extension [***16] of that doctrine and to the new ruling in this case, are
now explained in support of this respectful dissent.

I

Before today, the Court had not held that the Confrontation Clause bars
admission of scientific findings when an employee of the testing
laboratory authenticates the findings, testifies to the laboratory's
methods and practices, and is cross-examined at trial. Far from replacing
live testimony with "systematic" and "extrajudicial" examinations, Davis
v. Washington, 547 U. S. 813, 835, 836 (2006) (THOMAS, J., concurring in
judgment in part and dissenting in part) (emphasis deleted and internal
quotation marks omitted), these procedures are fully consistent with the
Confrontation Clause and with well-established principles for ensuring
that criminal trials are conducted in full accord with requirements of
fairness and reliability and with the confrontation guarantee. They do
not "resemble Marian proceedings." Id., at 837.

The procedures followed here, but now invalidated by the Court, make
live testimony rather than the "solemnity" of a document the primary
reason to credit the laboratory's scientific results. Id., at 838. Unlike
Melendez-Diaz[**631], where the jury was asked to credit a laboratory's findings
based solely on documents that were "quite plainly affidavits,"
557 U. S., at ___ (slip op., at 1) (THOMAS, J., concurring) (internal
quotation marks omitted), here the signature, heading, or legend on the
document were routine authentication elements for a report that would be
assessed and explained [*2724] by in-court testimony subject to full
cross-examination. The only sworn statement at issue was that of the
witness who was present and who testified.

The record reveals that the certifying analyst's role here was no
greater than that of anyone else in the chain of
custody. App. 56 (laboratory employee's testimony agreeing that "once the
material is prepared and placed in the machine, you don't need any
particular expertise to record the results"). The information contained in
the report was the result of a scientific process comprising multiple
participants' acts, each with its own evidentiary significance. These acts
included receipt of the sample at the laboratory; recording its receipt;
storing it; placing the sample into the testing device; transposing the
printout of the results of the test onto the report; and review of the
results. See Id., at 48-56; see also Brief for State of New Mexico Dept.
of Health Scientific Laboratory Division as Amicus Curiae 4 (hereinafter
New Mexico Scientific Laboratory Brief) ("Each blood sample has original
testing work by . . . as many as seve[n] analysts. . . ."); App. 62
(indicating that this case involved three laboratory analysts who,
respectively, received, analyzed, and reviewed analysis of the sample);
cf. Brief for State of Indiana et al. as Amici Curiae in Briscoe v.
Virginia, O. T. 2009, No. 07-11191, p. 10 (hereinafter Indiana Brief)
(explaining that DNA analysis can involve the combined efforts of up to
40 analysts).

In the New Mexico scientific laboratory where the blood sample was
processed, analyses are run in batches involving 40-60 samples. Each
[***17] sample is identified by a computer-generated number that is not linked
back to the file containing the name of the person from whom the sample
came until after all testing is completed. See New Mexico Scientific
Laboratory Brief 26. The analysis is mechanically performed by the gas
chromatograph, which may operate — as in this case — after all the
laboratory employees leave for the day. See id., at 17. And whatever the
result, it is reported to both law enforcement and the defense. See id.,
at 36.

The representative of the testing laboratory whom the prosecution
called was a scientific analyst named Mr.
Razatos. He testified that he "help[ed] in overseeing the administration
of these programs throughout the State," and he was qualified to answer
questions concerning each of these steps. App. 49. The Court has held
that the government need not produce at trial "everyone who laid hands on
the evidence," Melendez-Diaz, supra, at ___, n. 1 (slip op., at 5, n.
1). Here, the defense used the opportunity in cross-examination to
highlight the absence at trial of certain laboratory employees. Under
questioning by Bullcoming's attorney, Razatos acknowledged that his name
did not appear on the report; that he did not receive the sample, perform
the analysis, or complete the review; and that he did not know the reason
for some personnel decisions. App. 58. After weighing arguments from
defense counsel concerning [**632] these admissions, and after considering the
testimony of Mr. Razatos, who knew the laboratory's protocols and
processes, the jury found no reasonable doubt as to the defendant's
guilt.

In these circumstances, requiring the State to call the technician who
filled out a form and recorded the results of a test is a hollow
formality. The defense remains free to challenge any and all forensic
evidence. It may call and examine the technician who performed a test.
And it may call other expert witnesses to explain that tests are not
always reliable or that the technician might have made a mistake. The
jury can then decide whether to credit [*2725] the test, as it did here. The
States, furthermore, can assess the progress of scientific testing and
enact or adopt statutes and rules to ensure that only reliable evidence
is admitted. Rejecting these commonsense arguments and the concept that
reliability is a legitimate concern, the Court today takes a different
course. It once more assumes for itself a central role in mandating
detailed evidentiary rules, thereby extending and confirming
Melendez-Diaz's "vast potential to disrupt criminal procedures."
557 U. S., at ___ (slip op., at 3) (KENNEDY, J.,
dissenting).

II

The protections in the Confrontation Clause, and indeed the
Sixth Amendment in general, are designed to ensure a fair trial with
reliable evidence. But the Crawford v. Washington, 541 U. S. 36 (2004),
line of cases has treated the reliability of evidence as a reason to
exclude it. Id., at 61-62. Today, for example, the Court bars admission
of a lab report because it "is formalized in a signed document." Ante, at
15 (internal quotation marks omitted). The Court's unconventional and
unstated premise is that the State — by acting [***18] to ensure a statement's
reliability — makes the statement more formal and therefore less likely
to be admitted. Park, Is Confrontation the Bottom Line?
19 Regent U. L. Rev. 459, 461 (2007). That is so, the Court insists,
because reliability does not animate the Confrontation Clause. Ante, at
11; Melendez-Diaz, supra, at ___ (slip op., at 11-12); Crawford, supra,
at 61-62. Yet just this Term the Court ruled that, in another
confrontation context, reliability was an essential part of the
constitutional inquiry. See Michigan v. Bryant, 562 U. S. ___, ___-___,
___-___ (2010) (slip op., at 11-12, 14-15).

Like reliability, other principles have weaved in and out of the
Crawford jurisprudence. Solemnity has sometimes been dispositive, see
Melendez-Diaz, 557 U. S., at ___ (slip op., at 6); id., at ___ (slip
op., at 1) (THOMAS, J., concurring), and sometimes not, see Davis,
547 U. S., at 834-837, 841 (THOMAS, J., concurring in judgment in part
and dissenting in part). So, too, with the elusive distinction between
utterances aimed at proving past events, and those calculated to help
police keep the peace. Compare Davis, supra, and Bryant,
562 U. S., at ___-___ (slip op., at 24-30), with id., at ___-___ (slip
op., at 5-9) (SCALIA, J., dissenting).

It is not even clear which witnesses' [**633] testimony could
render a scientific report admissible under the Court's approach.
Melendez-Diaz stated an inflexible rule: Where "analysts' affidavits"
included "testimonial statements," defendants were "entitled to be
confronted with the analysts" themselves. 557 U. S., at ___ (slip op., at
5) (internal quotation marks omitted). Now, the Court reveals, this rule
is either less clear than it first appeared or too strict to be
followed. A report is admissible, today's opinion states, if a "live
witness competent to testify to the truth of the statements made in the
report" appears. Ante, at 1. Such witnesses include not just the
certifying analyst, but also any "scientist who . . . perform[ed] or
observe[d] the test reported in the certification." Ante, at 2.

Today's majority is not committed in equal shares to a common set of
principles in applying the holding of Crawford. Compare Davis, supra
(opinion for the Court by SCALIA, J.), with id., at 834 (THOMAS, J.,
concurring in judgment in part and dissenting in part); and Bryant,
supra, (opinion for the Court [*2726] by SOTOMAYOR, J.), with id., at ___
(THOMAS, J., concurring in judgment), and id., at ___ (SCALIA, J.,
dissenting), and id., at ___ (GINSBURG, J., dissenting); and ante, at ___
(slip op., at 1) (opinion of the Court), with ante, at ___ (slip op., at
1) (SOTOMAYOR, J., concurring). That the Court in the wake of Crawford
has had such trouble fashioning a clear vision of that case's meaning is
unsettling; for Crawford binds every judge in every criminal trial in
every local, state, and federal court in the Nation. This Court's prior
decisions leave trial judges to "guess what future rules this Court will
distill from the sparse constitutional text," Melendez-Diaz, supra, at
___ (slip op., at 2) (KENNEDY, J., dissenting), or to struggle to apply
an "amorphous, if not entirely subjective," "highly context-dependent
inquiry" involving "open-ended balancing." Bryant, supra, at ___ (slip
op., at 15-16) (SCALIA, J., dissenting) (internal quotation marks omitted)
(listing 11 factors relevant under the majority's [***19] approach).

The persistent ambiguities in the Court's approach are symptomatic of a
rule not amenable to sensible applications. Procedures involving multiple
participants illustrate the problem. In Melendez-Diaz the Court insisted
that its opinion did not require everyone in the chain of custody to
testify but then qualified that "what testimony is introduced must . . .
be introduced live." 557 U. S., at ___, n. 1 (slip op., at 5, n. 1);
ante, at 6, n. 2. This could mean that a statement that evidence remained
in law-enforcement custody is admissible if the statement's maker appears
in court. If so, an intern at police headquarters could review the
evidence log, declare that chain of custody was retained, and so
testify. The rule could also be that that the intern's statement — which
draws on statements in the evidence log — is inadmissible unless every
officer who signed the log appears at trial. That rule, if applied to
this case, would have conditioned admissibility of the report on the
testimony of three or more identified witnesses. See App. 62. In other
instances, 7 or even 40 [**634] witnesses could be required. See supra, at 3. The
court has thus — in its fidelity to Melendez-Diaz — boxed itself into a
choice of evils: render the Confrontation Clause pro forma or construe it
so that its dictates are unworkable.

III

Crawford itself does not compel today's conclusion. It is true, as
Crawford confirmed, that the Confrontation Clause seeks in part to bar
the government from replicating trial procedures outside of public view.
See 541 U. S., at 50; Bryant, supra, at ___ (slip op., at 11-12).
Crawford explained that the basic purpose of the Clause was to address
the sort of abuses exemplified at the notorious treason trial of Sir
Walter Raleigh. 541 U. S., at 51. On this view the Clause operates to bar
admission of out-of-court statements obtained through formal
interrogation in
preparation for trial. The danger is that innocent defendants may be
convicted on the basis of unreliable, untested statements by those who
observed — or claimed to have observed — preparation for or commission of
the crime. And, of course, those statements might not have been uttered
at all or — even if spoken — might not have been true.

A rule that bars testimony of that sort, however, provides neither
cause nor necessity to impose a constitutional bar on the admission of
impartial lab reports like the instant one, reports prepared by
experienced technicians in laboratories that follow professional norms
and scientific protocols. In addition to the constitutional [*2727] right to call
witnesses in his own defense, the defendant in this case was already
protected by checks on potential prosecutorial abuse such as free
retesting for defendants; result-blind issuance of reports; testing by an
independent agency; routine processes performed en masse, which reduce
opportunities for targeted bias; and labs operating pursuant to scientific
and professional norms and oversight. See Brief for Respondent 5, 14-15,
41, 54; New Mexico Scientific Laboratory Brief 2, 26.

In addition to preventing the State from conducting ex parte trials,
Crawford[***20]'s rejection of the regime of Ohio v. Roberts, 448 U. S. 56
(1980), seemed to have two underlying jurisprudential objectives. One was
to delink the intricacies of hearsay law from a constitutional mandate;
and the other was to allow the States, in their own courts and
legislatures and without this Court's supervision, to explore and develop
sensible, specific evidentiary rules pertaining to the admissibility of
certain statements. These results were to be welcomed, for this Court
lacks the experience and day-to-day familiarity with the trial process to
suit it well to assume the role of national tribunal for rules of
evidence. Yet far from pursuing these objectives, the Court rejects them
in favor of their opposites.

Instead of freeing the Clause from reliance on hearsay doctrines, the
Court has now linked the Clause with hearsay rules in their earliest,
most rigid, and least refined formulations. See, e.g., Mosteller,
Remaking Confrontation Clause and Hearsay Doctrine Under the Challenge of
Child Sexual Abuse Prosecutions, 1993 U. Ill. L. Rev. 691, 739-740, 742,
744-746; Gallanis, The Rise of Modern Evidence Law, 84 Iowa L. Rev. 499,
502-503, 514-515, 533-537 ([**635] 1999). In cases like Melendez-Diaz and this
one, the Court has tied the Confrontation Clause to 18th century hearsay
rules unleavened by principles tending to make those rules more
sensible. Sklansky, Hearsay's Last Hurrah, 2009 S. Ct. Rev. 1, 5-6, 36.
As a result, the Court has taken the Clause far beyond its most important
application, which is to forbid sworn, ex parte, out-of-court statements
by unconfronted and available witnesses who observed the crime and do not
appear at trial.

Second, the States are not just at risk of having some of their hearsay
rules reviewed by this Court. They often are foreclosed now from
contributing to the formulation and enactment of rules that make trials
fairer and more reliable. For instance, recent state laws allowing
admission of well-documented and supported reports of abuse by women
whose abusers later murdered them must give way, unless that abuser
murdered with the specific purpose of foreclosing the testimony. Giles
v. California, 554 U. S. 353 (2008); Sklansky, supra, at 14-15. Whether
those statutes could provide sufficient indicia of reliability and other
safeguards to comply with the Confrontation Clause as it should be
understood is, to be sure, an open question. The point is that the States
cannot now participate in the development of this difficult part of the
law.

In short, there is an ongoing, continued, and systemic displacement of
the States and dislocation of the federal structure. Cf. Melendez-Diaz,supra, at ___, ___, ___ (slip op., at 2-3, 22-23).
If this Court persists in applying wooden formalism in order to bar
reliable testimony offered by the prosecution — testimony thought proper
for many decades in state and federal courts committed to devising fair
trial processes — then the States might find it necessary and appropriate
to enact statutes to accommodate this new, intrusive federal regime. If
they do, those [*2728] rules could remain on State statute books for decades,
[***21] even if subsequent decisions of this Court were to better implement the
objectives of Crawford. This underscores the disruptive, long-term
structural consequences of decisions like the one the Court announces
today.

States also may decide it is proper and appropriate to enact statutes
that require defense counsel to give advance notice if they are going to
object to introduction of a report without the presence in court of the
technician who prepared it. Indeed, today's opinion relies upon laws of
that sort as a palliative to the disruption it is causing. Ante, at 17
(plurality opinion). It is quite unrealistic, however, to think that this
will take away from the defense the incentives to insist on having the
certifying analyst present. There is in the ordinary case that proceeds
to trial no good reason for defense counsel to waive the right of
confrontation as the Court now interprets it.

Today's opinion repeats an assertion from Melendez-Diaz that its
decision will not "impose an undue burden on the prosecution." Ante, at
16 (plurality opinion). But evidence to the contrary already has begun to
mount. See, e.g., Brief for State of California et al. as Amici Curiae 7
(explaining that the 10 toxicologists for the Los Angeles Police
Department spent 782 hours at 261 court appearances during a 1-year
period); Brief for National District Attorneys Assocation et al. as [**636]AmiciCuriae 23 (observing that each blood-alcohol analyst in California
processes 3,220 cases per year on average). New and more rigorous
empirical studies further detailing the unfortunate effects
of Melendez-Diaz are sure to be forthcoming.

In the meantime, New Mexico's experience exemplifies the problems
ahead. From 2008 to 2010, subpoenas requiring New Mexico analysts to
testify in impaired-driving cases rose 71%, to 1,600 — or 8 or 9 every
workday. New Mexico Scientific Laboratory Brief 2. In a State that is the
Nation's fifth largest by area and that employs just 10 total analysts,
id., at 3, each analyst in blood alcohol cases recently received 200
subpoenas per year, id., at 33. The analysts now must travel great
distances on most working days. The result has been, in the laboratory's
words, "chaotic." Id., at 5. And if the defense raises an objection and
the analyst is tied up in another court proceeding; or on leave; or
absent; or delayed in transit; or no longer employed; or ill; or no
longer living, the defense gets a windfall. As a result, good defense
attorneys will object in ever-greater numbers to a prosecution failure or
inability to produce laboratory analysts at trial. The concomitant
increases in subpoenas will further impede the state laboratory's ability
to keep pace with its obligations. Scarce state resources could be
committed to other urgent needs in the criminal justice system.

* * *

Seven years after its initiation, it bears remembering that the
Crawford approach was not preordained. This Court's missteps have
produced an interpretation of the word "witness" at odds with its meaning
elsewhere in the Constitution, including elsewhere in the Sixth Amendment,
see Amar, Sixth Amendment First [***22] Principles, 84 Geo. L. J. 641, 647,
691-696 (1996), and at odds with the sound administration of justice. It
is time to return to solid ground. A proper place to begin that return is
to decline to extend Melendez-Diaz to bar the reliable, commonsense
evidentiary framework the State sought to follow in this case.